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Gauhati High Court · body

2015 DIGILAW 113 (GAU)

Subhash Gupta and Anr. v. State of Assam

2015-02-03

PARAN KUMAR PHUKAN

body2015
1. This revision petition is directed against the judgment and order dated 27.9.2004 passed by the learned Addl. District and Sessions Judge (Adhoc), Nagaon in Crl. Appl. No. 52(N)/02 affirming the judgment and sentence dated 23.9.2002 passed by learned Sub-Divisional Judicial Magistrate, Hojai in C.R. Case No. 709/2000 convicting the accused/revision petitioners u/s 7/16 of the Prevention of Food Adulteration Act, 1954( herein after referred to as the PFA Act) and sentencing them to undergo rigorous imprisonment for six months and to pay a fine of Rs.1000/- each in default to rigorous imprisonment for two months. 2. The facts of the case in a nutshell, is that on 17.6.2000 Senior Food Inspector Sri CK Pathak of Nagaon accompanied by his Peon Narayan Ch. Bania visited the Chakki Mill of the accused/revision petitioners at Lalpatty, Hojai and collected sample of coriander whole(dhania) and part of the sample was sent to Public Analyst for examination. After examining the same, the Public Analyst opined that the sample of coriander (dhania) whole did not conform to the standard. After receiving the report, the Food Inspector filed complaint against the accused/revision petitioners u/s 7/16 of the PFA Act, after obtaining necessary sanction from the Local Health Authority. The Food Inspector observed all the formalities of the PFA Act and Rules and necessary notices were duly served including the notice u/s 13(2) of the PFA Act. 3. During the trial the learned Magistrate recorded the evidence of the Food Inspector and the Peon who accompanied him at the time of taking sample. The accused admitted the ownership of the chakki mill and pleaded that it was a mill for grinding of spices and allied items brought by the customers and charges for grinding was realised from them. The materials were not kept in the mill for selling to the public. 4. I have carefully perused the evidence of Food Inspector and Peon who has been examined as PW 1 and 2 respectively and I have no doubt that he collected sample of coriander(dhania) from the chakki mill and it was found not fit for human consumption by the public analyst . The evidence further reveals that he observed all the formalities of the PFA Act and Rules. His evidence is corroborated by PW 2, Peon. 5. The evidence further reveals that he observed all the formalities of the PFA Act and Rules. His evidence is corroborated by PW 2, Peon. 5. In support of their plea, petitioners examined themselves as witnesses and they also examined the customer who had kept the coriander whole in the chakki mill for grinding on that day. 6. The learned trial court as well as the learned Addl. District & Sessions Judge ignored the plea and evidence of the accused/petitioners and convicted them u/s 7/16 of the PFA Act. 7. Learned Advocate appearing for the revision petitioners submitted that the learned Addl. Dist. & Sessions Judge has failed to consider the plea taken by the accused and there has been miscarriage of justice. He strenuously argued that in a chakki mill materials are not kept for selling to customers. Agricultural products such as spices wheat etc are brought to the mill by other persons for the purpose of grinding and after realising grinding charges the materials are returned to them. 8. In the instant case both the accused in their evidence categorically stated that coriander whole was brought by a customer to the mill for grinding and after keeping the bag, he went to market for marketing. In the meantime, the Food Inspector arrived and took sample of the said coriander seed. The customer who had brought coriander to the mill for grinding has been examined as DW 3, Sri Tilaku Chauhan, also supported the version given by DW 1 and DW 2 and his positive evidence is that on that day he brought 7 ½ kg of coriander whole to the mill for grinding. He was an agriculturist and he used to cultivate coriander(dhonia). On that day after weighing the dhonia he left the mill for marketing. The accused/petitioner on examination of the bag found the coriander seed dirty and as such refused to grind the same. DW 3 agreed to take back the bag after coming from market. Evidence shows that in the meantime Food Inspector arrived and collected sample. 9. In cross examination nothing could be brought out from the defence witnesses to show that they have concocted false case with a view to save themselves from criminal liability. 10. It is a settled proposition that the accused is not required to prove the plea beyond all reasonable doubt. 9. In cross examination nothing could be brought out from the defence witnesses to show that they have concocted false case with a view to save themselves from criminal liability. 10. It is a settled proposition that the accused is not required to prove the plea beyond all reasonable doubt. His burden is not as heavy as that of the prosecution to prove its case. In the instant case from the evidence of the defence witnesses, it appears that the accused kept the coriander whole in the mill premises for grinding. The customer had brought the same for milling. The probability cannot be ruled out. 11. From what has been discussed above I have found that learned Addl. Sessions Judge failed to consider the plea of the accused. He placed implicit reliance on the evidence of the prosecution witnesses and came to the finding that the accused petitioner kept the coriander whole in the mill for sale for human consumption and totally ignored the defence plea. 12. For the reasons as discussed above, the judgment and order of the learned Addl. District Judge is set aside. 13. Send down the LCR with a copy of the judgment for necessary action.